Review refused, but minority judges join in strongly worded opinion.

A 15-judge appellate panel in New Orleans said this week it won’t reconsider a decision to let stand a ban on licensed dealers selling handguns and ammunition to people under 21.

Although on the losing end of the Fifth Circuit Court of Appeals’ 8-7 vote Tuesday, April 30, the National Rifle Association’s lead attorney on the case said he found hope in a strongly worded dissent signed by six of the seven judges who voted to hear the appeal.

David Thompson of the Washington, D.C., firm of Cooper and Kirk, said the NRA is considering options, including appealing to the U.S. Supreme Court. The NRA has 90 days to file that appeal.

Tuesday’s action was the latest turn in a lawsuit the NRA and three under-21 members filed in federal court in Lubbock in September 2010 against the federal Bureau of Alcohol, Tobacco, Firearms and Explosives and U.S. Attorney General Eric Holder.

The suit contends a federal law that bans licensed dealers from selling handguns to adults who are 18 years old, but not yet 21, is unconstitutional.

The suit argued the law discriminates because it denies some Second Amendment gun ownership rights to people on the basis of age.

U.S. District Judge Sam R. Cummings in Lubbock dismissed the suit at summary judgment in September 2011, ruling that while the law amounted to age discrimination, Congress chose to discriminate against younger gun purchasers because of public safety concerns.

Summary judgment is a way to conclude a lawsuit without a trial. It’s used when a judge decides there is no dispute over the facts in the case and that one side is entitled to judgment.

The NRA appealed, and in October, a three-judge panel — all Texans — unanimously upheld the federal law.

In the original appellate ruling, Judge Edward C. Prado of San Antonio cited legislative intent that setting the minimum age for dealer sales at 21was an attempt to curb violent crime.

The other judges who heard the original appeal were Carolyn Dineen King of Houston and Catharina Haynes of Dallas.

Prado’s 41-page opinion offered a lengthy legal history of age restrictions on handgun ownership.

NRA attorney Thompson said in a telephone interview: “We wish we’d had that one vote, but we’re very gratified by that opinion.”

The opinion was a dissent authored by Judge Edith H. Jones of Houston, and joined by five other judges who wanted to hear the case. The 21-page dissent opens with a reference to “serious errors” by the panel that decided the case last year.

Jones wrote: “The implications of the decision — that a whole class of adult citizens, who are not as a class felons or mentally ill, can have its constitutional rights truncated because Congress considers the class ‘irresponsible’ — are far-reaching.”

The Prado panel’s decision took a skewed view of history, claiming the opinion amounted to “rummaging through random ‘gun safety regulations of the 18th century’ ” to justify restrictions on gun ownership, according to Jones.

She argued that the minimum age for membership in colonial militias in 1650 was 16 years old, and in some of those colonies “it was not just the right but the duty to bear arms.”

When the Second Amendment was passed, Jones wrote, the states made 18 the minimum age for militia service as they adopted the federal Militia Act of 1792.

In a footnote, Jones mentioned the federal law adopted 18 as the minimum age largely because George Washington had stated the best soldiers were the ones between ages 18 and 21.

walt.nett@lubbockonline.com

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How they voted

The 15 judges of the Fifth Circuit Court of Appeals split 8-7 against rehearing an appeal by the National Rifle Association. The NRA sued to overturn a federal law barring licensed dealers from selling handguns and ammunition to people who are 18 years old, but not yet 21.